The ‘Ultimate Driving Machine’, Is it Really Safe?
Norman Taylor & Associates
September 30, 2008
Here is a serious question. “Can clever promotion and flashy advertisements overcome an automobile manufacturer’s inability produce and then maintain a persistently defective automobile?” The answer; for a while, perhaps, but the dwindling spiral of shoddy workmanship, cynical customer service and deceptive repair practices will in the end, destroy the manufacturer’s credibility and the public’s desire to own these products. And once lost, it can be years before that credibility is regained.
James O. Whitworth, an attorney with Norman Taylor & Associates, a well-known California Lemon Law firm, took on German auto manufacturer, BMW in Alegria vs. BMW and won a resounding victory. It was one of those rare occasions when the jury was so disgusted with the defendant’s behavior that over and above the repurchase amount, the jury awarded Mr. Alegria double damages. The total verdict requires BMW to pay $75,960.95 for the repurchase of the vehicle and $151,921.90 damages awarded by the jury: additionally, subject to the courts consideration there will be a motion for pre-judgment interest plus attorney’s fees and costs currently estimated to be around $135,000.00. Current law suggests that a ‘lodestar’ award may be granted which would make it possible to apply as much as a five times multiplier to the award of fees.
Here’s the story and it’s not pretty. Without the severe airbag safety issue, which we’ll talk about in a moment, the vehicle was well qualified for a repurchase under California Lemon Law, based on the five (5) electronics control system defects. These defects included the engine shutting off when the vehicle was turned to the right or to the left, the accelerator sticking and that the engine died at stops; also the engine would die when placed in reverse. This vehicle was at the dealership for repairs for 32 days in the first 3,702 miles of operation. The defects were not corrected by the various repair attempts. These facts make the vehicle presumptive under California law.
Now we come to the airbag situation. While Mr. Alegria and his two passengers were driving on the freeway, the driver-side airbag deployed. Mr. Alegria, despite minor injuries suffered at the time, was able to get the vehicle to the side of the freeway without further injury to himself or his passengers and the vehicle. These injuries were minor compared to what might have happened had he lost control of the vehicle while driving on a busy freeway. BMW contended that he must have hit a pothole on the right front of the vehicle. This astonishing assertion cannot be supported by any physical analysis. Odd that the airbag on the right side of the vehicle where is supposedly hit the pothole did not deploy. As was discovered at trial, BMW’s expert was in fact not an expert on the behavior of airbags at all. Also, as testified to by one of Mr. Alegria’s passengers, who is a serving State Police officer, no pot hole was hit prior to the airbag deployment. Another damning bit of evidence was found in the owner’s manual for the vehicle. The manual states clearly that the airbag will not deploy in the event of a minor accident or vehicle rollover. No accident or rollover occurred.
Over recent years, the development of airbags has moved from just one for the driver to as many as a half-dozen or more strategically positioned in the modern vehicle. However, at this time no airbags have been proposed to protect the driver from objects below ground or falling from the sky.
This sort of failure goes to the heart of the owner’s confidence that he or she has purchased a vehicle that is safe, that can be trusted to provide the greatest protection for it’s passengers as is possible.
It should be noted that this is the first time BMW has had problems with its safety systems. An earlier recall was issued for this exact problem, the inadvertent deployment of an airbag.
The really sad part of this tale is BMW’s behavior. It is truly hard to believe. Mr. Alegria wanted the BMW dream. He wanted to own the Ultimate Driving Machine. He had every right to expect excellent, thoughtful and caring service. Instead, rather than buy back the defective vehicle and thus make a BMW fan for life, and who knows how many more purchases of BMW vehicles, they put him through a litany of misery that was unconscionable. The amount of wasted hours, of money spent and upset caused were not justified by the events.
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